Exploring New Approaches to Unsettled Legal Questions

Tag: 2018–2019

Publications from the 2018–2019 academic year

Fair Use Has Nothing to do with Being Fair

by Yonatan Shefa*

In the context of fair use, should courts factor moral harms into their analyses? In this Contribution, Yonatan Shefa (’19) challenges the applicability – in the context of fair use – of a recent line of research by legal academics who argue that copyright law should grant artists a degree of protection against moral harms since those protections better incentivize creation. This Contribution ultimately argues that courts must not consider moral harms in the fair use scheme absent such a directive by Congress, and that Congress would be ill-advised to effect such a change to the law.

Reconceptualizing the Registration Approach in Anticipation of the Supreme Court’s Decision in Fourth Estate

by Jonathan Wieder*

Should the Copyright Office be able to vet copyright applications before any action for copyright infringement is instituted? This term, in the upcoming case Fourth Estate, the Supreme Court will consider whether “registration” within the meaning of the United States Copyright Act merely mean that the components of the application need to be submitted to the Copyright Office (the “application” approach) or that the Copyright Office has affirmatively approved or refused the application (the “registration” approach). In this Contribution, Jonathan Wieder (’19) discusses the textual and legislative origins and consequences of each approach and the differing circuit interpretations that led to the grant of certiorari in Fourth Estate. Ultimately, this Contribution argues that the registration approach better effectuates congressional policy of vesting the Copyright Office with discretion over copyrightability and balancing protections for all parties to a copyright dispute.

Striking a Balance: Resolving the Conflicts Between Sections 363 and 365 of the Bankruptcy Code

by Gavin Mackie*

The balancing act that is the United States Bankruptcy Code sometimes leads to a tension between sections of the Code that grant rights to debtors and those that provide protections for parties with an interest in the debtor’s property. In this Contribution, Gavin Mackie (’19) explores the conflict between Sections 363(f) and 363(h) and how courts have approached situations where this conflict arises. Ultimately, this Contribution will argue that the possessory rights guaranteed by section 365(h) should be protected in any sale, and that a sale under 363(f) cannot eliminate the lessee’s interest.

The Applicability of the Absolute Priority Rule in the Context of Pre-Plan Settlement Agreements

by Nathan Gencarella*

Can a bankruptcy court may approve a priority-skipping “gift” settlement in a Chapter 11 proceeding prior to the approval of a final plan over the objection of a disadvantaged class of creditors? In this Contribution, Nathan Gencarella (’19) argues that the principles of the recent Supreme Court decision Czyzewski v. Jevic Holding Corp. necessitate the application of the absolute priority rule to pre-plan settlements in order to preserve the integrity of the Bankruptcy Code’s carefully calibrated priority scheme. Ultimately, this Contribution establishes that this extension of Jevic is re-affirmed by both the dictates of public policy and the underlying text of the statute itself.

All Hands on Deck: Preserving the Humanity of Asylum Through Meaningful Judicial Review

by Susan Levinson*

How can asylum applicants and their advocates safeguard their rights to a fair, impartial consideration of their claims when the Board of Immigration Appeals has virtually complete discretion in its decisions? In this Contribution, Susan Levinson (’19) argues that the lack of procedural safeguards built into the asylum process, coupled with the Court’s generally deferential, hands-off approach in the immigration context, deprive vulnerable applicants of their right under due process to a fair, impartial consideration of their claims. Ultimately, this Contribution recommends judicial, regulatory, and legislative reforms to protect legitimate asylum claims.

Integrating Care but Increasing Liability? Mitigating Risk in Non-Profit Health System Acquisitions of For-Profit Management Services Organizations

by Victoria Hamscho, Daniel Weinstein, and Ryan Knox*

Non-profit healthcare systems may seek to create an integrated care delivery system by acquiring other healthcare companies. Particular risks arise when nonprofit healthcare systems purchase for-profit management services organizations. In this Contribution, Victoria Hamscho, Daniel Weinstein, and Ryan Knox (’19) call attention to some significant risks non-profit healthcare systems face in acquiring for-profit management services organizations (including fraud and abuse, corporate practice of medicine laws, antitrust violations, and tax violations) and suggest possible means of mitigating these risks.

Immigration and the Second Amendment: Why Undocumented Immigrants Are Entitled to the Fundamental Right to Possess Firearms

by Kathy Buckalew*

Do undocumented immigrants have Second Amendment rights? Can they be categorically banned from possessing firearms? In this Contribution, Kathy Buckalew (’19) examines the constitutionality of a categorical ban on possession of firearms and ammunition by undocumented immigrants. The Contribution argues that undocumented immigrants living in the United States have the same individual right to keep and bear arms for purposes of self-defense as do United States citizens. Therefore, undocumented immigrants cannot be categorically prohibited from possessing firearms absent an affirmative showing by the government that such a prohibition is substantially related to the achievement of an important government interest.

Criminalizing Poverty: Designing Constitutionally Sound Inquiries into Defendants’ Ability to Pay their Fees and Fines

by Leah Romm*

What principles should courts keep in mind when inquiring into a defendant’s financial situation? In this Contribution, Leah Romm (’19) discusses the equal protection and due process challenges to incarcerating individuals because of their inability to pay fees or fines. Ultimately, this Contribution argues that courts are constitutionally required to inquire into and determine the financial status of individuals who fail to pay the fees or fines they owe.

No Tiny Exceptions: The Copyright Collision Between Safe Harbors and Sound Recordings

by Ari Lipsitz*

How should courts address the contradiction between the preemption rules for pre-1972 recordings in the Copyright Act and the safe harbors in the Digital Millennium Copyright Act? In this Contribution, Ari Lipsitz (’18) analyzes the statutory conflict between these provisions and examines how courts have dealt with issues under these statutes. Ultimately, this Contribution discusses the potential effects of the Second Circuit’s decision in Capitol Records v. Vimeo and proposes legislative reform and judicial interpretations to protect internet policy and copyright law.

“Reliable, Specific, and Objective”: The Scope of Judicial Review of Documentary Evidence in Asylum Decisions

by Deirdre Dlugoleski*

Under what standard should courts of appeals review decisions of the Board of Immigration Appeals regarding supporting documentation in asylum cases? In this Contribution, Deirdre Dlugoleski (’19) explains the role of supporting documentation entered into evidence in asylum cases by the applicant, the government, and the Immigration Judge and the standard for admission. The Contribution argues that the scope of substantial evidence review of supporting documentation should be broad, and that courts play an important role in holding the BIA accountable for basing its decisions on reliable information.

Page 2 of 2

Powered by WordPress & Theme by Anders Norén